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2016
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
SEAFARERS SAFETY AND COMPENSATION LEVIES COLLECTION BILL 2016
EXPLANATORY MEMORANDUM
(Circulated by authority of the Minister for Employment, Senator the Hon. Michaelia Cash)
Outline
SEAFARERS SAFETY AND COMPENSATION LEVIES COLLECTION BILL 2016
OUTLINE
The Seafarers Safety and Compensation Levies Collection Bill 2016 (the Bill) provides for the
procedures associated with the collection of the levies that will be imposed by the Seafarers
Safety and Compensation Levies Bill 2016 (the Levies Bill).
The Bill requires employers of seafarers to lodge returns relating to the number of seafarer berths
aboard a prescribed vessel and to make levy payments quarterly. If the levy is not paid, the Bill
provides for a late payment penalty to become payable.
The Bill provides for an employer to give quarterly returns to the Safety Rehabilitation and
Compensation Commission (the SRCC). It also provides for the appointment of authorised
persons and the manner in which authorised persons may have access to premises and books for
the purpose of examining matters relating to a seafarer's berth on a prescribed ship on which a
levy is, or may be, payable.
The Bill also establishes a standing appropriation of the Consolidated Revenue Fund, so that the
Commonwealth can pay the funds raised by the cost recovery levy imposed by the Levies Bill to
Comcare. Comcare will then pay a portion of this money to the Australian Maritime Safety
Authority.
The Bill and the Levies Bill replace the Seafarers Rehabilitation and Compensation Levy
Collection Act 1992 and the Seafarers Rehabilitation and Compensation Levy Act 1992,
respectively.
The Bills form part of a package of legislative reforms to modernise the Seacare scheme,
aligning work health and safety with the model work health and safety laws and giving effect to
recommendations in a review of workers compensation and making the scheme consistent with
the government's cost recovery guidelines.
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Financial Impact Statement
FINANCIAL IMPACT STATEMENT
N/A
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Regulation Impact Statement
REGULATION IMPACT STATEMENT
This Bill forms part of a package of legislative reforms - see the regulatory impact statement for
the Seafarers and Other Legislation Amendment Bill 2016, which addresses all Bills in the
package.
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Statement of Compatibility with Human Rights
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Seafarers Safety and Compensation Levies Collection Bill 2016
The Seafarers Safety and Compensation Levies Collection Bill 2016 (the Bill) is compatible with
the human rights and freedoms recognised or declared in the international instruments listed in
section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Overview
The Bill provides for the procedures associated with the collection of the levies that will be
imposed by the Levies Bill.
The Bill provides for the appointment of authorised persons and the manner in which authorised
persons may have access to premises and books for the purpose of examining matters relating to
a seafarers berth on a prescribed ship on which a levy is, or may be, payable.
The Bills form part of a comprehensive package of legislative reforms to the Seacare scheme, a
national work health and safety and workers' compensation scheme for a very small proportion
of the maritime industry.
Human rights implications
The Bill engages the right to privacy under Article 17 of the International Covenant on Civil and
Political Rights (ICCPR).
Right to privacy
Article 17 of the ICCPR provides that 'no one shall be subjected to arbitrary or unlawful
interference with [their] privacy, family, home or correspondence'. General Comment 16 by the
Human Rights Committee elaborates on Article 17, stating that the 'gathering and holding of
personal information on computers, databanks and other devices, whether by public authorities
or private individuals or bodies, must be regulated by law'.
Both levies imposed by the Levies Bill are calculated on the basis of how many 'seafarer berths'
there are on a vessel. Clause 13 of the Bill empowers an authorised person (who must be a senior
employee of Comcare) to enter premises, either with a consent of the occupier or in accordance
with a warrant, and while there to search for and examine documents and other things relating to
berths on which the levies are, or may be, payable.
This entry power is not new--clause 13 replicates, in almost exact terms, section 12 of the
current Seafarers Rehabilitation and Compensation Levy Collection Act 1992. The clause is also
consistent with the Regulatory Powers (Standard Provisions) Act 2014, which provides a
framework of standard regulatory powers exercised by agencies across the Commonwealth.
The entry power is expressly limited. The power can only be used for a purpose related to
determining the number of berths on which levy is payable. Further, unless there is consent from
the occupier, the power can only be used if the authorised person has obtained a warrant from a
Magistrate. These restrictions ensure that the power cannot be used in an arbitrary manner and
does not enable unlawful interferences with privacy. Further, any personal information gathered
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Statement of Compatibility with Human Rights
from documents accessed using this power will be subject to the Privacy Act 1988, which
establishes a comprehensive system for the protection of personal information.
These restrictions ensure that if the clause did limit the right to privacy, this would be in a
manner that is reasonable and proportionate. Any such limitation would also be necessary to
achieve the legitimate objective of accurately determining the amount of levy payable in relation
to each vessel in the scheme. Ensuring that the levy payable accurately reflects the number of
seafarers covered by the scheme is essential to the levies achieving their objectives. While the
majority of operators and employers provide accurate information, it is important that Comcare
has sufficient regulatory powers to investigate potential underpayment of the levies.
Conclusion
Clause 13, which provides for entry onto premises and provides for the copying of documents
which may contain personal information, engages the right to privacy. However, because any
interference with privacy will be neither arbitrary nor unlawful, the clause does not limit the
right. Further, if the clause did limit the right, it would be in a manner than is reasonable and
proportionate and necessary to achieve a legitimate objective.
As such, the Bill is compatible with human rights because it generally does not engage with human rights
and, to the extent it could limit one human right, such limitation would be necessary to achieve the Bill's
legitimate objective and would be reasonable and proportionate to that legitimate objective.
Minister for Employment, Senator the Hon Michaelia Cash
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Notes on Clauses
NOTES ON CLAUSES
In these notes on clauses, the following abbreviations are used:
AAT Administrative Appeals Tribunal
Bill Seafarers Safety and Compensation Levies Collection Bill 2016
CEO Chief Executive Officer
Levies Bill Seafarers Safety and Compensation Levies Bill 2016
Levy Collection Seafarers Rehabilitation and Compensation Levy Collection Act
Act 1992
SES Senior Executive Service of the Australia Public Service
SRCC Safety, Rehabilitation and Compensation Commission
Clause 1 - Short title
1. Clause 1 provides for the short title of the Act to be the Seafarers Safety and
Compensation Levies Collection Act 2016.
Clause 2 - Commencement
2. The table in this clause sets out when the provisions of the Bill commence.
3. Sections 1 and 2 commence on the day the Act receives the Royal Assent. The
substantive provisions in sections 3 to 23 commence on the same day as clause 3 of the
Levies Bill, that is, on the same day as Part 3 of Schedule 2 to the Seafarers and Other
Legislation Amendment Act 2016. The commencement date is set down as 1 July 2017.
Clause 3 - Simplified outline of the Act
4. This clause contains a simplified outline of the Bill. The simplified outline is included
in the Bill to assist readers to understand the substantive provisions of the Bill, but is not
intended to be comprehensive. Readers should rely on the substantive provisions of the Bill.
Clause 4 - Definitions
5. This clause contains the principal definitions of terms used in the Bill. Importantly, it
defines the term 'levy' to mean the seafarers insurance levy or the seafarers cost recovery
levy imposed by the Levies Bill. Other definitions will be explained in the context of the
provisions within which they appear.
Clause 5 - Extent of Act
This clause provides that the Bill will have extra-territorial operation.
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Notes on Clauses
Clause 6 - When levy is due for payment
6. This clause provides that the levies are due for payment 14 days after the start of the
quarter when the levy is imposed on the seafarer berths on a prescribed vessel.
Clause 7 - Late payment penalty
7. This clause provides that, where an amount of the levies remains unpaid after
becoming due for payment, a penalty calculated at 20% per annum (or a lower rate if
specified in the regulations) becomes payable.
8. The SRCC can remit the penalty in certain circumstances specified in subclause 7(2),
either on its own initiative or on application. A decision by the SRCC to refuse an application
to remit, or to remit only part of, a penalty is reviewable by the AAT.
Clause 8 - Recovery of levy and late payment penalty
9. This clause provides that the levies and late payment penalty are debts due to, and
recoverable by, the Commonwealth.
Clause 9 - Employers to give returns to the Commission
10. This clause provides that an employer must give the SRCC a return setting out the
number of seafarer berths normally used by seafarers employed by that employer, with such
other information specified in a form approved by Comcare, within 14 days of the start of the
quarter (that is, returns will be due on the same day as payment is due--see clause 6).
11. Failure to lodge the form is a strict liability offence. This replicates an existing strict
liability offence in section 7 of the Levy Collection Act. Maintaining a strict liability offence
is considered justified for this provision because of the regulatory nature of the offence, the
low penalty amount (5 penalty units) and the difficulty of proving a mental element for this
type of offence. The use of strict liability is balanced by providing for a 'reasonable excuse'
defence.
12. Subclause 9(7) overrides the privilege against self-incrimination when giving a return,
but subclause 9(8) limits the admissibility of the return and any information, document or
thing obtained as a direct or indirect consequence of giving the return in certain civil and
criminal proceedings.
Clause 10 - Detention of vessel
13. This clause provides that where levy imposed on seafarer berths on a prescribed
vessel remains unpaid after it becomes due for payment the vessel may be detained by a
person authorised under the Bill (see clause 12) until the amount is paid.
Clause 11 - Levy taken to be levy in relation to a ship for certain purposes of the Admiralty
Act
14. This clause provides that the levies are a levy recoverable as a general maritime claim
for the purposes of paragraph 4(3)(q) of the Admiralty Act 1988.
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Notes on Clauses
Clause 12 - Appointment of authorised persons
15. This clause provides for the CEO of Comcare to appoint the Deputy CEO of Comcare
or a member of the Comcare staff at SES or Executive level 1 or 2 to be an authorised person.
The appointment must be in writing and specify the relevant provision of the Act to which the
authorisation relates.
Clause 13 - Access to premises and books
16. This clause provides that an authorised person may enter premises under warrant
issued under clause 19 or with the consent of the occupier (see clause 14) and search for and
examine documents and other things relating to berths on which levy is, or may be, payable.
17. 'Premises' is defined in clause 4 and specifically includes a vessel.
Clause 14 - Consent of occupier
18. This clause provides that the consent of the occupier for the purposes of clause 13
must be voluntary and may be withdrawn. An authorised person who enters premises with the
consent of the occupier is required to show the occupier his or her identity card before, or as
soon as is reasonably practicable after, entering the premises.
Clause 15 - Announcement before entry under warrant
19. This clause requires an authorised person entering premises under a warrant to
announce that he or she is authorised to enter and show an identity card to the occupier of the
premises.
Clause 16 - Authorised person to be in possession of warrant
20. This clause provides that an authorised person must have the warrant or a copy of the
warrant when executing a warrant.
Clause 17 - Details of the warrant to be given to occupier
21. This clause requires the authorised person to give a copy of the warrant to the
occupier or another person representing the occupier, when present, and inform that person in
writing of the occupier's rights (see clause 18) as soon as practicable.
Clause 18 - Right to observe the execution of the warrant
22. This clause provides that the occupier or other person representing the occupier, when
present, is entitled to observe the execution of the warrant as long as the observation does not
impede the execution of the warrant.
Clause 19 - Warrants to enter premises
23. This clause sets out the requirements for the application for, and issue by a magistrate
of, a warrant to enter premises. The term 'Magistrate' is defined in the Acts Interpretation
Act 1901.
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Notes on Clauses
Clause 20 - Identity cards
24. This clause provides that the CEO of Comcare may issue identity cards to authorised
persons and specifies the form of, and the information that must be included on, an identity
card.
25. It is an offence of strict liability for a person not to return to the CEO of Comcare an
identity card when the person ceases to be an authorised person. This replicates an existing
strict liability offence in section 14 of the Levies Collection Act. Maintaining a strict liability
offence is considered justified because an authorised person under the Act will be a public
official who can be presumed to be aware of their responsibilities in relation to their identity
card. The use of a strict liability offence is balanced by a low penalty amount (1 penalty unit)
and a 'reasonable excuse' defence.
Clause 21 - Delegation by the CEO of Comcare
26. This clause provides that the CEO of Comcare may delegate all or any of his or her
functions (other than the ability to appoint authorised persons under clause 12) to the Deputy
CEO, an SES or Executive level 1 or 2 member of the Comcare staff. The delegation must be
in writing. The CEO of Comcare may issue directions to delegates.
Clause 22 - Commonwealth payments to Comcare--seafarers cost recovery levy etc.
27. This clause provides for the transfer of the money raised by the Seafarers Cost
Recovery Levy to Comcare and AMSA.
28. Subclause 22(1) provides that the Commonwealth must pay the money raised by the
levy to Comcare, including any late payment penalties.
29. Subclause 22(4) establishes a standing appropriation from the Consolidated Revenue
Fund for the purposes of the Commonwealth paying the money raised by the levy to
Comcare. A standing appropriation is considered justified in these circumstances because it
will only relate to money raised by a levy for a specified purpose. The use of a standing
appropriation in relation to a cost recovery levy is consistent with other cost recovery
levies -- see, for example, section 48 of the Australian Maritime Safety Authority Act 1990.
30. Subclause 22(5) empowers Comcare to transfer a portion of the money it receives to
AMSA. This portion will be the amount which is attributable to AMSA's expenditure in the
administration of the WHS Act, as it applies to the Seacare scheme.
31. Subclauses 22(2), (3), (6), (7) and (8) deal with the situation of a portion of the levy
being refunded. They provide for repayment by AMSA to Comcare, and Comcare to the
Commonwealth. These repayments can be offset against other amounts.
Clause 23 - Regulations
32. This provision allows for the Governor-General to make regulations required or
permitted under the Bill or necessary or convenient for carrying out or giving effect to the
Bill or facilitating the collection of the levy or the late payment penalty.
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